Legal Tools for Survivors of Sexual Assault
© Claire Harwell, J.D.
& Gift From Within
I was asked by Joyce Boaz, the director of Gift From Within, to write an article about legal issues that would be helpful to survivors of sexual assault and their loved ones. Our goal is to provide useful information to allow you to consider all of your options and select what you, or your loved one, needs in order to fully recover from the trauma you've experienced.
Sexual violence turns the world upside down for survivors and their loved ones. Unfamiliar feelings, and re-experiencing the trauma of assault and betrayal are often the new realities in this strange new landscape. The legal system, with its ancient language and formal traditions may seem like an unlikely place to get help, but there are some immediate needs which are most effectively met by using the law as a tool. (Note: Current active and reserve duty service members who would like to explore these options will need to seek legal advice off-base if they are pursuing a restricted reporting option with a sexual assault, or if they do not wish to report the assault.)
Central among these post-assault needs are the restoration of hope and the preservation of key areas of the survivors' lives, such as work, housing, school, income, and education. While survivors' post-assault needs are varied, many are tied to psychological responses to trauma. One common experience is the inability to feel safe enough to leave home to go to work, school, or medical appointments. As one survivor put it, "It's just not worth it. When I go out, I'm sure I see him everywhere." Prompt, trauma-informed psychological support provides the best help for healing these difficult times in a survivor's life, but a legal intervention can assist in creating the safety that is needed to make healing possible. Protective Orders are available from special courts that hear only this type of case in brief hearings. These orders prevent the offender from being within a designated distance of the survivor, and may have other specialized conditions such as requiring the offender to vacate an apartment rented jointly with the survivor. A client who was raped by her roommate was able to have him removed from their joint lease by obtaining a protection order with this provision.
Another alternative for creating a measure of safety is a civil injunction against an offender, which also prevents him or her from approaching the survivor, or the survivor's workplace, or other sites frequented by the survivor and noted in the order. Another survivor who suffered through repeated threatening phone calls from her assailant, a former work colleague, was able to get relief by obtaining an injunction against him that prohibited any contact with her.
Other "stay away" orders are available from public housing authorities for their facilities, and for schools and universities. College students are at particular risk for sexual assault, and the insular nature of the college community can result in constant interactions with the assailant in classes, social events, and in housing facilities. One institutional client, a small western college, makes it possible for reporting students to seek a "stay away" order through the campus professional who was also assigned to provide psychological support and system information to survivors. These agency orders are governed by the issuing agency's policies, which vary greatly from jurisdiction to jurisdiction.
Many survivors also struggle to maintain their day-to-day routines due to the intrusiveness of the psychological aftermath from the assault. The inability to concentrate, experiences of sudden inexplicable terror, and emotional numbness are common feelings after a sexual assault, and are all associated with a recognized condition which the Americans with Disabilities Act addresses. Reasonable accommodations may be sought under the A.D.A. to enable the survivor to continue to work or attend school. For example, a client who couldn't tolerate going to her job was able to negotiate a temporary arrangement for working from home. Another client was able to change her university class schedule so that she could attend a different section of a lab course so that she was not in a small class with her assailant. Like in the cases of these two survivors, brief legal advice can assist a survivor to frame their own request for a change in work or school such as a schedule change or a shift in responsibilities, all within the context of the legal rights of the survivor and the legal responsibilities of the employer or school.
Sometimes when survivors can't go to work, they and their families turn to strategies that are helpful in the short-term, but damaging in the longer-term, such as relying upon credit or high-interest paycheck loans to pay for basic expenses. Financial needs as a result of being the victim of a crime may be addressed through the criminal justice system and the civil justice system. Access to the criminal justice system begins with the filing of a police report about a crime. All U.S. states have victim reparations programs to pay some of the direct costs of crimes that are reported to law enforcement. In addition, if an offender is convicted, restitution may be awarded as part of sentencing. The survivor doesn't need to hire an attorney to get restitution or victim reparations, although close communication with the prosecutor is an absolute necessity to ensure that these options are secured on the survivor's behalf.
In addition to criminal justice options, a survivor may also consider the possibility of seeking damages through a civil lawsuit. Potential targets of this type of suit include the offender, and negligent third parties who, through action or inaction, made the assault more likely to occur. Examples of negligence include inadequate screening and supervision of employees, inadequate security at an apartment complex or public area such as a shopping mall or parking lot. Legal advice for this type of lawsuit is often provided "on contingency," meaning that the law firm's payment is contingent on the survivor's success in the lawsuit, rather than being an out-of-pocket expense for the survivor. An initial assessment of the strength of a potential claim is usually provided without charge by law firms who handle these cases.
Beyond all of these strategies for seeking out funds to pay the cost of the crime(s), legal advice is beneficial to assist a survivor to negotiate the most advantageous settlement with creditors and to enforce the debtor's rights in garnishment and lien actions. Legal Aid programs across the country provide this type of representation to low-income members of the community and many local bar associations offer instruction on how to navigate this type of representation as a self-represented party.
Many survivors hunger for justice after experiencing sexual assault. An expectation of a particular legal outcome can lead to a demoralizing second trauma in the justice system. However, if the goal is to confront the harmful behavior of the offender, the legal system is our society's chosen vehicle for that confrontation. The survivor may elect to enter the criminal justice system by filing a formal police report. This is a decision that should not be undertaken lightly. Although many remedies are only available if a police report is filed (e.g. restitution and reparations mentioned above, immigration support through special visas/self-petitions and deportation defenses), the entire process is defined and driven by the criminal justice system's own deadlines and goals, not those of the survivor.
The military justice system is often burdened with additional obstacles, such as the frequent use of inexperienced lawyers as prosecutors in sex crimes cases. David Lisak, a forensic psychologist and noted expert both on offender behavior and on the impact of psychological trauma, reports that this system can unfairly bias the outcome of military trials by pitting an inexperienced lawyer against an experienced one in the very cases that the public most needs education about. "Sexual crimes prosecutions are complex cases, in part because of the many myths and the misinformation that pervades this whole domain. These myths can prejudice the outcome against neutral deliberations of the case facts in individual courts martial cases." However, with all of its flaws, the criminal justice system is the only way to publicly identify criminal behavior and to seek the sanction of imprisonment of the offender.
Alternatively, the civil justice system seeks to evaluate "harm," to place a dollar value on it and, in some circumstances, to create a plan to change negligent behavior by third parties. The standard of proof in the civil system is also lower and the goals are those of the parties, not the goals of some larger entity. Participation in either of these systems is not expensive for the survivor as the state pays for the prosecution of the offender in the criminal justice system and civil representation is typically provided on contingency.
All of the legal issues mentioned in this article: safety, maintaining work and school opportunities, protecting financial integrity, and seeking justice, are issues that can easily be overlooked in the path towards healing from an assault-and yet attending to them is fundamental for insulating the survivor and the survivor's loved ones from the cascading impact of trauma and for supporting the core healing activity of rebuilding hope. These resources can assist you in providing information and hope for the survivor in your life: